FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Reginald K.
Jo Bondi, Attorney General, Tallahassee, and Kristen L.
Davenport, Assistant Attorney General, Daytona Beach, for
S. Purdy, Public Defender, and Ali Lee Hansen, Assistant
Public Defender, Daytona Beach, for Appellee.
State of Florida appeals the trial court's order
dismissing the violation of probation charges against
Mundegerick Mitchum in five separate cases. We reverse.
Between March 13, 2001, and March 17, 2001, Mitchum
participated in several armed robberies and an armed
carjacking. In June 2002, Mitchum pleaded nolo contendere to
robbery with a firearm in four of the cases and carjacking
with a firearm in the remaining case. Mitchum was sentenced
to fifteen years' incarceration in the Department of
Corrections followed by fifteen years' probation. The
probation orders in all five cases required that Mitchum
refrain from violating any law and stated that "[a]
conviction in a court of law shall not be necessary in order
for such a violation to constitute a violation of your
his release in July 2014, Mitchum has been arrested for
operating a motor vehicle without a valid driver's
license and for three incidents of domestic violence. Each of
these arrests resulted in three separate sets of violation of
probation charges in all of the five cases. All of these
violation of probation charges were later dismissed by the
trial court. However, the State has only appealed the
dismissals arising from Mitchum's August 7, 2016 arrest
for domestic violence battery.
the hearing on the violations, the State nolle prossed the
criminal charge that arose out of Mitchum's August 7,
2016 arrest for domestic violence. Consequently, when the
hearing took place, Mitchum's counsel moved, ore tenus,
to dismiss the violation of probation based on the State
having dropped the criminal charge in the underlying domestic
battery case. The State objected, explaining that it wanted
the opportunity to try the violation, noting that this was
Mitchum's third act of domestic violence since his
release from prison in 2014. The trial court ultimately
granted Mitchum's motion and dismissed the violation of
probation charges in all five cases.
State argues that the trial court erred in granting the
motion to dismiss because its decision not to prosecute the
criminal domestic battery charge does not preclude it from
pursuing a probation violation based on the same offense. We
the State drops a criminal charge, this is not an acquittal
and will not prevent future prosecution if this happens
before jeopardy attaches. Gonzales v. State, 780
So.2d 266, 267 (Fla. 4th DCA 2001); State v.
Jenkins, 762 So.2d 535, 536 (Fla. 4th DCA 2000);
Morris v. State, 727 So.2d 975, 976 (Fla. 5th DCA
1999). In Jenkins, the Fourth District explained
this concept as follows:
A nolle prosequi only means that the state is not prepared to
go forward with the prosecution of the criminal charge. At
most, it conveys that the state did not have sufficient
evidence to meet its burden of proving guilt beyond a
762 So.2d at 536. In contrast, the State only has to prove a
violation of probation by a preponderance of the evidence,
which is a lesser standard than what is required to prove the
criminal charge. Id. (citing Miller v.
State, 661 So.2d 353, 354 (Fla. 4th DCA 1995)). As such,
the State may very well have sufficient evidence to meet this
lesser burden. See id.
Because the State's decision to nolle pros the domestic
battery charge does not bar it from pursuing the violation of
probation charges, the trial court's rulings on the
motion to dismiss were erroneous.See id. We,